Prosecutor: NY jury nullification booster 'threat'

By LARRY NEUMEISTER | March 21, 2012 | 8:55 PM EDT

NEW YORK (AP) — A government lawyer on Wednesday vigorously defended the prosecution of a man who urges jurors to sometimes disregard the law and vote their conscience, calling him a "significant threat" to the integrity of the judicial system.

Assistant U.S. Attorney Rebecca Mermelstein argued before U.S. District Judge Kimba Wood in an unusual court case that tests whether the First Amendment can shield the actions of Julian Heicklen. Heicklen was arrested and charged with a misdemeanor for repeatedly handing out pamphlets to people outside a lower Manhattan courthouse near the World Trade Center site between October 2009 and May 2010, urging a practice known in legal circles as jury nullification.

Mermelstein said in court papers that Heicklen, who was indicted on Nov. 18, 2010, also has regularly passed out pamphlets in front of federal courthouses in Philadelphia, Boston, Tampa, Fla., Alexandria, Va., Concord, N.H., Springfield, Mass., Hartford, Conn., and Albany and White Plains in New York state.

"It's the content of the message that's undermining the fairness of the legal system in this courthouse," Mermelstein said. "It's a significant threat."

Mermelstein said Heicklen had written on the Tyrranyfighters website that "jury nullification has born fruit in a recent case in Missoula, Montana due to the jurors' indications during voir dire that they would not convict a defendant of the entirely victimless act of possession of 1 1/16 of an ounce of marijuana."

She said that if Heicklen were permitted to continue, then judges might as well instruct jurors: "Here's the law, but do whatever you want."

Heicklen, who is representing himself against the criminal charge of improperly trying to influence a juror, did not argue before the judge and was not in court. Instead, two public defenders were appointed to represent his interests in the oral arguments. The judge did not immediately rule.

Attorney Steven M. Statsinger said Heicklen was within his rights because the plaza outside the federal courthouse in lower Manhattan is a public forum and he is not trying to influence any particular jurors in any ongoing cases.

"There's no corrupt intent to undermine the outcome of a particular case," the lawyer said.

Statsinger said Heicklen's actions would be comparable to someone telling potential witnesses that they have the Fifth Amendment right not to say anything.

Mermelstein, the prosecutor, noted that other judges had already ruled that the area immediately outside the courthouse was not a public forum, though she said nearby areas such as the streets of Chinatown might be fine.

Heicklen was arrested after he passed out pamphlets on at least eight occasions while he carried a sign reading "Jury Info."

In court papers, Statsinger and another lawyer, Sabrina Schroff, said Heicklen's conduct does not offend the judicial system. They are seeking a jury trial for Heicklen.

"The sight of a shabby old man distributing his silly leaflets from the sidewalk outside of a courthouse ... is, at its worst, an inconvenience or an annoyance," they wrote.